Florida Tank Clean up Amnesty is Limited
by Federal Court
Case Decided January 4, 2000
Many owners of sites in Florida contaminated with petroleum from underground storage tanks have benefited by an amnesty from lawsuits by third parties whose property is affected seeking the site owners to cleanup the petroleum. This amnesty stems from Florida’s petroleum cleanup program which pays for the cleanup of petroleum sites according to the sites’ priority rankings. Specifically, the statute provides that:
“…no person who owns or operates a
facility or who otherwise could be responsible for costs as a result of
contamination eligible for restoration funding from the Inland Protection Trust
Fund shall be subject to administrative or judicial action, brought by or on
behalf of any state or any local government or any other person, to compel
rehabilitation in advance of commitment of restoration funding in accordance
with a sites priority ranking pursuant to 376.3071(5)(a) or to pay for the
costs of rehabilitation of environmental contamination resulting from a
discharge of petroleum products that is eligible for restoration funding from
the Inland Protection Trust Fund...”
On January 4, 2000, the 11th Circuit Court of Appeals, in Boyes v. Shell Oil Products Company, et. al, held that the state statute providing amnesty is preempted by corresponding federal statutes under the Resources Conservation and Recovery Act or “RCRA.” RCRA require sites contaminated with petroleum to be cleaned up and specifically authorizes citizen suits against polluters for violations of rules and for “past or present…storage … or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Although this case simply allows a pending law suit to proceed, clearly there are additional implications. Facility owners in Florida responsible for petroleum contamination under the statutes can now be sued by third parties despite being enrolled in the state petroleum cleanup program and despite language to the contrary in the Florida statutes.
The implications of this ruling may not be limited to petroleum pollution. The RCRA citizen suit provision cited in Boyes applies to any violation of RCRA, which regulates not only pollution from underground petroleum storage tanks but also pollution related to other hazardous wastes. While the Boyes case focused primarily on petroleum, the drycleanming statute may be in jeopardy as well. The drycleaning stature reads almost identically to the petroleum amnesty statute, and provides that persons eligible for the drycleaning program are not subject to suits to compel rehabilitation or pay for the costs of rehabilitation of environmental contamination resulting from the discharge of drycleaning solvents. To the extent that drycleaning solvents are deemed to be regulated substances under RCRA, the amnesty for those in the drycleaning program may be in the same way preempted by RCRA’s citizen suit provision.
It is not clear how this ruling will affect facility owners participating in the Petroleum Cleanup Participation Program (PCP Program). The PCP Program statute, contained at 376.3071(13), Fla. Stat., contains a specific amnesty in subsection (f) against judicial and enforcement actions by FDEP and local governments. Amnesty from suits by citizens is not specifically addressed. However, the PCP Program is subject to funding from the Inland Protection Trust Fund and could arguably be covered in the same statute quoted above. Because the Boyes opinion clearly holds that amnesty based on funding from the Inland Protection Trust Fund is inconsistent with RCRA, it is likely that any amnesty from citizen suits as a result of being in the PCP Program is also preempted by RCRA.
Practically, it would appear that the Boyes ruling would be most critical for sites with offsite plumes. Those with plumes confined to the property would be les likely to attract third party lawsuits. Furthermore, third party claims for property damage and personal injury were never affected by the amnesty.
Frank L. Hearne
Bank of America Plaza Suite 3140
101 East Kennedy Boulevard
Tampa, Florida 33602-5151
Tel. (813) 909-7400
Fax (813) 909 8592
E-mail us at frank@hgn.com